A Review of Hong Kong's Wild Animal and Plant Protection Laws
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HKU KE IP 2011/12-52 September 2013 A Review of Hong Kong’s Wild Animal and Plant Protection Laws Amanda S. Whitfort BA (Hons), LLB, LLM* Andrew Cornish Ph. D ** Rupert Griffiths PgDip *** Fiona M. Woodhouse BA (Hons), MA, VetMB, MRCVS**** *Associate Professor, Faculty of Law, The University of Hong Kong. ** Ecological Consultant, Cornerstone Ecology ***Animal Welfare Management Consultant, Greenwing Ltd. **** Deputy Director (Welfare), Society for Prevention of Cruelty to Animals (Hong Kong). EXECUTIVE SUMMARY Hong Kong has a rich terrestrial, freshwater and marine biodiversity, and a long history of legislation going back to 1870 to protect aspects of it. However, over the past fifteen years, experts have noted that a variety of loopholes exist which deny a holistic legislative approach to conserving biodiversity. Some of these loopholes were intentional and reflect historical perspectives, others unintentional and represent a failure to keep abreast of emerging threats. Some suggestions have been made from a conservation perspective as to how to improve the law, but no formal review has taken place until now, let alone one incorporating legal expertise. Given that context, the review comprises an analysis of the existing legislation for conserving terrestrial, freshwater and marine native fauna and flora in Hong Kong, with the aims of making recommendations to the HKSAR Government for law reform, and enhancing understanding in the conservation community. It is intended to feed into the process of formulating Hong Kong’s first Biodiversity Strategy and Action Plan (BSAP) under the Convention of Biological Biodiversity (CBD), which Hong Kong joined through an extension of China’s CBD membership in 2011. Formulation of the BSAP will take place from 2013-14. In this review, we consider the effectiveness of the Wild Animals Protection (Cap. 170), Forests and Countryside (Cap. 96), Fisheries Protection (Cap. 171), Country Parks (Cap. 208) and Marine Parks (Cap. 476) Ordinances in protecting wild, native species in Hong Kong. We make a variety of recommendations to update and unify these Ordinances with regards to protecting species of conservation concern, and assert how these can inform the Environmental Impact Assessment Ordinance (Cap. 499). We have also provided some general comment on the enforcement of these Ordinances with regards to protecting wild, native species. However we have not analysed whether the levels of punishment for non-compliance are sufficiently high to provide a deterrent, or analysed in detail the effectiveness of specific types of enforcement, as such analyses are beyond the scope of this study. In total, we make 15 Recommendations for legislative amendments involving: 1 The creation of a “List of Hong Kong Species of Conservation Concern” which includes fauna and flora, and is periodically updated and used to inform lists of protected species under all relevant Ordinances. The addition of freshwater fishes, and marine fishes and invertebrates to lists of protected species, via the List of Hong Kong Species of Conservation Concern. Improved measures to manage invasive alien species. Prevention of new public actions against non-protected species through potential loopholes in the definition of ‘hunting.’ Increased controls for the possession of protected wild animals. Additional protection for protected plant species on private land. Making allowances for accidental interactions with protected marine species (i.e. physical contact such as a collision with a boat, or accidental capture with a net that causes death, injury or stress to the animal). Improving the assessment of impacts to species under the Environmental Impact Assessment Ordinance. The recommendations were formulated with the consensus of experts in the non-governmental conservation community. If followed, they will address all the major (and some more minor) areas required to unify and update the legislation protecting wild, native animals and plants for many years to come. Following the recommendations would be a major contribution not just to meeting with the standards of the CBD, but also to securing the long-term conservation and sustainable use of Hong Kong’s rich biodiversity, if done in parallel with progressive policies, and the provision of sufficient resources for effective enforcement. 2 ACKNOWLEDGEMENTS We wish to record our thanks to the staff of the Agriculture, Fisheries and Conservation Department, WWF-Hong Kong (Dr. Michael Lau, Alan Leung and Samantha Lee), Kadoorie Farm and Botanical Garden (Dr. Gary Ades, Paul Crow and Andrew Brown) and Ruy Barretto S.C., and staff of the University of Hong Kong’s School of Biological Science (Professors David Dudgeon, Yvonne Sadovy and Gray Williams) for their assistance and advice to us in the course of preparing this review paper. The review was supported by Hong Kong University’s Knowledge Exchange Fund which is provided by the University Grants Committee. 3 TABLE OF CONTENTS EXECUTIVE SUMMARY…...…………………………………………………………….…....1 ACKNOWLEDGEMENTS………………………..…………………………………….………3 TABLE OF CONTENTS……………………….………………………………………….….....4 1. INTRODUCTION……………………………………………………………………..……...6 2. METHODOLOGY…………………………………………………………………………....9 3. THE ORDINANCES AND SUGGESTIONS FOR LAW REFORM………………………..9 3.1 The Wild Animals Protection Ordinance, Cap 170…………………………………….….9 3.1.1. Inconsistencies Between The Conservation Status Of Different Species, And Their Protection Under The Law……………………………………………………………………………………..11 3.1.2. Recommendation 1: Compile A “List of Hong Kong Species Of Conservation Concern” And Use It To Update The List Of Wild Animals Protected Under Schedule 2 Of The WAPO………...12 3.1.3. The Exclusion Of Protection For Freshwater Fishes………………………………………......13 3.1.4. Recommendation 2: Include Freshwater Fishes Under WAPO, And Use A List Of Hong Kong Species Of Conservation Concern As The Basis For Including Freshwater Fish Species Of Conservation Concern Under Schedule 2…………………………………………………………..14 3.1.5. Managing Invasive Alien Species …………………………………………………………......15 3.1.6. Overseas Legislation For Managing Impacts From Invasive Alien Species…………………..16 3.1.7. Recommendation 3: Remove The Protection Afforded To Invasive Alien Species Under WAPO Schedule 2 (And Potentially Other Ordinances)…………………………………………...19 3.1.8. Recommendation 4. Prevention Of New Public Actions Against Non-Protected Species Through Potential Loopholes In The Definition Of “Hunting”…………………………………….20 3.1.9. Recommendation 5: Rename Pest Control Tools From “Hunting Appliances” To “Approved Pest Management Appliances”…………………………………………………………………......21 3.1.10. Recommendation 6: Enhance Controls For The Possession Of Protected Wild Animals, To Reduce The Opportunity For Laundering Locally Caught Wildlife Into The Legal Trade………...21 3.2. The Forests and Countryside Ordinance Cap 96…………………………………………22 3.2.1. The List Of Protected Plant Species Needs Updating…………………………………………22 3.2.2. Recommendation 7: Compile A List of Hong Kong Species of Conservation Concern And Use It To Update The List Of Wild Plants Protected Under The FCO……………………………..23 3.2.3. Protected Plants Should Be Conserved On Private Land……………………………………...23 3.2.4. Recommendation 8: Provide Protection For Rare Plant Species Found On Private Land Under The FCO…………………………………………………………………………………………….24 3.2.5. Recommendation 9: Amend The FCO To Restrict The Possession Of Tools That Might Be 4 Used To Damage Protected Plants………………………………………………………………….24 3.2.6. Recommendation 10. Amend The FCO To Allow The Authorities To Be Able To Control Alien Plant Species On Private Land……………………………………………………………….24 3.3. The Fisheries Protection Ordinance Cap 171…………………………………………….25 3.3.1. Fishing Has Had A Major Impact On The Abundance Of Different Species Of Marine Fish And Invertebrates……………………………………………………………………………….………..26 3.3.2. Some Marine Species Of Fish And Invertebrates Will Need Special Protection From Fishing……………………………………………………………………………………...……….28 3.3.3. Overseas Legislation for Managing Impacts from Fishing on Protected Species…………..…29 3.3.4. Recommendation 11. Enact FPO Regulations To Protect Specified Marine Fish And Invertebrates (Including Spawn/Eggs), Based On A List Of Hong Kong Species Of Conservation Concern……………………………………………………………………………………………..31 3.3.5. Recommendation 12. Amend The FPO To Allow For Accidental Interactions With Protected Marine Species………………………………………………………………………………….…..32 3.4. Marine Parks Ordinance Cap 476……………………………………………………..….33 3.4.1. Other Species Additional To Those In Schedule 2 Should Be Protected In Marine Parks….…33 3.4.2. Recommendation 13. Amend Schedule 2 Of The MPO To Include Protection Of Certain Marine Fish And Invertebrates……………………………………………………………………...34 3.5. Country Parks Ordinance Cap 208…………………………………………………...…..34 3.6. Environmental Impact Assessment Ordinance Cap 499…………………………………35 3.6.1. Lack Of Clarity In Assessing The Ecological Importance Of Different Species……………...35 3.6.2. An Overly Narrow Definition Of Marine Species Of Importance To Fisheries……….………37 3.6.3. Recommendation 14: Amend The EIAO Technical Memorandum Annex 8 To Refer Specifically To A List of Hong Kong Species Of Conservation Concern………………………….38 3.6.4. Recommendation 15: Amend The EIAO Technical Memorandum Annex 9 To Include Ecologically Important Marine Species On The List of Hong Kong Species of Conservation Concern……………………………………………………………………………………………..38 3.7. Consider Establishing Additional Bodies To Assist With Enforcement………………………....38 4. CONCLUSIONS…………………………………………….…………………………..…..39